Support and Custody

Produced by an AmeriCorps Project of Western Massachusetts Legal Services updated and revised Massachusetts Law Reform Institute
Last Updated February 2010

Can I file for support or custody without getting divorced?

Yes. You may want to stay married, but you need support and health insurance. You may also need custody of your children, while you are married, and you may need support and health insurance for them.

To get support while staying married, you can file:

  • a Complaint for Support if you do not need a custody order but you need support or health insurance for yourself or your child and you stay married; or
  • a Complaint for Separate Support if you stay married and you need
    • a custody order, and
    • support or health insurance for your child, and/or
    • support or health insurance for yourself.
Produced by an AmeriCorps Project of Western Massachusetts Legal Services updated and revised Massachusetts Law Reform Institute
Last Updated August 2013

File a Complaint for Separate Support if you need a custody order as well as support for you and your children.

What court do I file in?

There is a Probate and Family Court in each county in Massachusetts.

If your spouse still lives in the county where you last lived together, you have to file for separate support in the Probate and Family Court in that county. If your spouse does not live in the same county where you last lived together, you can file a Complaint for Separate Support in the Probate and Family Court in the county where you live or in the Probate and Family Court in the county where your spouse lives.

How long will it take?

The court has a tracking system for all types of cases. Under the tracking system, complaints for separate support are assigned to the 8 Month Track. That means that complaints for separate support should go to trial, be settled, or dismissed within 8 months.

How much does it cost to file a case?

The Probate and Family Court charges fees for filing and handling certain documents. Check out the Probate and Family Court Department Uniform Fee Schedule to find out how much it will cost. As of July 9, 2012, it cost $120 to file a Complaint for Separate Support and there is a charge of $5 for a summons. Also, deputy sheriffs and constables usually charge $35-$45 to serve the papers on your spouse.

Case
Filing Fee
Surcharge
Summons
Deputy Sheriff
or Constable Costs
Separate Support

 

$100

 

$15

$5

roughly $35-$45

What if I cannot afford to pay the court fees?

You do not have to pay these fees if:

  • you get any kind of public benefits (welfare, Food Stamps, etc. or
  • your income is less than 125% of the federal poverty level;
  • you can show that paying the fees would make it hard for you to pay your rent or mortgage or buy food or clothing.

If you cannot pay the fees, use the Affidavit of Indigency form to ask the court to let you file without paying the fees. This is called a "fee waiver." The form also asks the court to order the state to pay the deputy sheriff or constable to serve the court papers.

You will need to write your income (how much money you get every month) on the Affidavit. Write down all the fees that you need help with: filing fees, the costs of getting the deputy sheriff or constable to serve the papers, and any other costs that you need covered. The Affidavit form has spaces where you can write this information. The court may ask you for documents showing why you need the court to pay your costs.

Can I keep my address secret?

Yes. You can keep your address secret from your spouse if you need to do this to stay safe. File a motion that asks the court to "impound" (hide) your address. Write on the motion form why it is not safe for your spouse to find out where you live. Look at a sample Motion to Impound Address and attached Affidavit.

Filing a Complaint for Separate Support

    1. Get a Complaint for Separate Support form and instructions from the Probate and Family court website or from any probate and family court in Massachusetts. If you need child support you will also need a copy of the Child Support Guidelines Worksheet
    2. Fill out the Complaintfor Separate Support:
      1. Choose a "grounds" (legal reason). The form has a checklist of grounds:
        1. Your spouse is not providing support;
        2. your spouse has deserted you;
        3. you are living apart from your spouse for "justifiable cause" (with good reason). Write down the reasons in the spaces provided;
      2. If you are asking for child support, fill out the Child Support Guidelines Worksheet
    3. Check out the Probate and Family Court Department Uniform Fee Schedule to find out how much it will cost. As of July 1, 2009, it cost $120 to file a Complaint for Separate Support ($100 filing fee + $15 surcharge + $5 for a summons). There are also fees, about $35-$45, to have a deputy sheriff or constable serve the papers on your spouse.
    4. File the Complaint. You can file a Complaint for Separate Support in the Probate and Family Court in the county where you live or in the Probate and Family Court in the county where your spouse lives. However, if your spouse still lives in the county where you last lived together, you have to file for separate support in the Probate and Family Court in that county.
      1. Fill out an Affidavit of Indigency form if you cannot pay for a summons or the cost to serve the papers. If you can check either box A or box B on the form, check the box. The clerk will approve the form, stamp it, and give you a copy. This means the court will cover your costs.
      2. File a motion to "impound" your address if you need to keep your address secret from your spouse to stay safe. Write on the motion form why it is not safe for your spouse to find out where you live. Look at a sample Motion to Impound Address and attached Affidavit.
      3. File a motion for temporary orders if you need the court to order something right away (like child support). File the motion when you file the complaint and Affidavit of Indigency. Ask the clerk for a date for a hearing on your motion. Write the date on the motion form. There's a place on the form where you do that. You can also file it later if you need to.

When you file the Complaint:

  1. Serve the papers. The clerk will give you a "Divorce/Separate Support Summons". This is an official paper that tells your spouse when he must file his Answer to your case. The court can only decide your case after your spouse is served with the summons. Bring or send the summons and a copy of all the papers that you filed to a sheriff or constable to deliver to your spouse. If the court approved your Affidavit of Indigency, use a deputy sheriff to serve the papers. Give the deputy sheriff a copy of the Affidavit of Indigency so the state can pay his or her fees. When the deputy sheriff gives the papers to your spouse, it is called "service of process."
  2. Wait for the sheriff or constable to return the summons and "Proof of Service" to you. After the sheriff or constable serves the papers, he or she will return the original summons to you. On the summons, the sheriff or constable fills out, signs, and dates the section called "Proof of Service". Be sure to tell the deputy sheriff or constable to send the summons with the "proof of service" back to you.
  3. Make a "return of services". Return the signed original Divorce/Separate Support Summons to the court. This is called making "return of service." Remember to make a copy of the signed original summons for your records.

What happens after I return the summons to the Court?

When you return the summons to the court, the clerk will look up your case to see if any court date has already been scheduled. If you filed a Motion for Temporary Orders, you will already have a court date. If your spouse files an Answer to your Complaint before you return the summons to the court, you will already have a court date.

If no court date has been scheduled, the clerk will schedule a "Case Management Conference". The Case Management Conference will be at least 30 days after you file the return of service.

What happens at a Case Management Conference?

At a Case Management Conference, the judge can hear the separate support case and grant a Judgment of Separate Support if

  • your spouse has not filed an Answer to your case, or
  • you and your spouse have "settled" the case and the judge approves. "Settling" means that the two of you have agreed in writing about all the things that must be decided in a separate support case, like who will have custody and how much support for you, how much support for your children, and what kind of health insurance you or your children should have and who should pay for it.

If the court does not grant the Judgment of Separate Support at the Case Management Conference, the court must/will assign the next court date. The next court date could be a Pre-Trial Conference or a trial date.

Going to trial - getting a Judgment of Separate Support

There will be a final hearing, also called a trial. At the trial the judge will decide your separate support case. Even at a trial, you and your spouse can settle the case with a written agreement that you sign and ask the judge to approve. The judge will issue a "Judgment of Separate Support." If the trial took a day or less, the judge must issue the judgment within 30 days of the trial.

A "judgment" is "final." That means that it cannot be changed later on unless there is a "significant change" in your or your spouse's situation. If there is a significant change, and you need a change in the judgment, you can file a Complaint for Modification.

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